"Pumping all the pedals on the prose organ"

Yesterday's decision of the Eleventh Circuit in Gilbert v. United States is getting some discussion in the blogosphere, mostly because of the overwrought dissents. As the majority opinion by Judge Carnes puts it,

Pumping all the pedals on the prose organ, they charge that by disagreeing with them on this legal issue, we have not only "neglect[ed] our responsibility," "shirked our duty," and "diminish[ed] the institution of the federal courts," Dissenting Op. of Martin, J., at 94-95, but have also "adopt[ed] a posture of judicial impotency that is shocking" and that "emasculates" this Court, Dissenting Op. of Hill, J., at 102, 104, and in the process we have rendered the judicial system "morally bankrupt," id. at 104, and converted the United States into a system of "'gulags,'" id. at 105. That is not our intent.

But of course the decision has done none of those things. It has simply enforced a clear and clearly constitutional law.

For both state and federal prisoners, Congress has severely limited a
second habeas or §2255 petition by those who have already had one. The
"actual innocence" exception is expressly limited to guilt of the
offense, not sentencing claims, and the "new rule" exception is
expressly limited to constitutional rules, not statutory ones. See 28
U.S.C. §§ 2244(b)(2) & 2255(h).

So along comes habitual
criminal Ezell Gilbert. At the time of his sentencing, two habitual
criminal provisions applied -- a mandatory life sentence under 21 U.S.C.
§841(b)(1)(A) and a lesser but still stiff career offender boost under
the then-mandatory Sentencing Guidelines. The government agreed to
dismiss the mandatory life sentence notice and he got the career
offender sentence. Years later, after his appeal and §2255 review were
final, case law changed so that he would not have been eligible for the
lesser career offender guideline he was sentenced under.

Can he
file a successive §2255 petition? No, he does not meet the criteria
Congress specified. The deliberately chosen words "guilty of the
offense" and "rule of constitutional law" leave no doubt that Congress
intended to exclude claims that go only to
sentence and new rules interpreting nonconstitutional sources of law, including statutes, rules of court, and guidelines. Does that mean he can file a habeas corpus petition, which
federal prisoners can do as a collateral attack only when §2255 is
"inadequate or ineffective"? Of course not. That would mean that
Congress's limits on successive petitions mean nothing in federal
prisoner cases.

Does this violate the Suspension Clause? Of
course not. As Judge Pryor explains in his concurrence, the Suspension
Clause is for the writ as it existed when that clause was enacted, which
did not include collateral attacks on convictions entered by courts of
competent jurisdiction.

Is there a remedy in an appropriate
case? The government can waive the limitations on successive and untimely
petitions, as they are not jurisdictional.

Is this an appropriate
case? No way. This is a guy who received break after break after
break and spit in the face of society's mercy every time. Even in the
present case, the government generously allowed Gilbert to receive a
lesser sentence than it might have insisted on. Having already received
the leniency of the lesser alternative, he should not be able to go
back and undo it now.

So what's with the hellfire and brimstone
from the dissents? It's a variation on the old saying -- When the law
is against you, bang the facts. When the facts are against you, bang
the law. When both are against you, bang the table.

Categories:

3 Comments

I think the hellfire and brimstone is the fact that the dissenters are hell bent on releasing a criminal. And it sure looks like Bush 43 picked right when he picked Pryor.

This would be an appropriate case for clemency. I don't think there would be serious issues with it--certainly, the Executive could decide that the specter of a criminal serving a now illegal sentence is not proper. (Not a decision I would make.)

Why is it that liberal judges get in such high dudgeon over a guy who, at the end of the day, got a good deal, even if his sentence is now illegal. There is no injustice here--that's for sure.

I remember when the panel decision came out about a year ago — I thought it was pretty odd, and likely to be reversed en banc. The Eleventh is probably the most consistently conservative circuit in the country (maybe tied with the Eighth). For a long time Barkett was the only liberal judge; Martin began writing quite a few dissents/concurrences from the left as soon as she joined last year, and seems intent on making an impact. I’m not sure this case is the most convincing place to do it, though.Florida Lemon Law